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September 2014

Precedent – Judicial discipline – Third Member is bound to consider judgement of Division bench – CESTAT order was unsustainable for non consideration of law in favour of assessee:

By Dr. K Shivaram Senior Advocate Ajay R. Sing h Advocate
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Larsen and Toubro Ltd vs. Commissioner of Central Excise; 2014 (306) ELT 27 (Bom.)(HC)

There was a difference of opinion between the Judicial member and the Technical Member. The appeal before the Tribunal was therefore referred to a Third Member. The Third Member held against the appellant/assessee. Prior to the decision of the Third Member, there was a decision of the Tribunal which supported the appellant’s contention before the Tribunal. That decision was brought to the notice of the learned Third Member before passing the order. The Third Member was bound to consider the judgment of the Tribunal. He, however, did not do so.

Prima facie, at least, even before the Tribunal the position for law appears to be in favour of the appellant. Unfortunately, the third member did not consider the judgment of the Tribunal.

The court also observed that the order of Tribunal was referred not because it has any precedent value in this court but is a indication of what the impugned order of the third member may well have been, had the judgement been considered by the learned third member.

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